Shavonda Hawkins v. the Kroger Co.
906 F.3d 763
9th Cir.2018Background
- Plaintiff Hawkins bought Kroger-brand bread crumbs in California over many years and relied on the label statement “0g Trans Fat per serving.”
- The product’s Nutrition Facts Panel listed 0 g trans fat per serving under FDA rounding rules that allowed listing <0.5 g as zero inside the panel.
- Hawkins alleged the product nevertheless contained artificial (partially hydrogenated) trans fats and sued Kroger under California UCL, FAL, CLRA, and breach-of-warranty theories (class action).
- The district court dismissed with prejudice for lack of statutory standing and, alternatively, preemption; it also dismissed the “use” claims as speculative.
- The Ninth Circuit reversed: it held Hawkins adequately pled reliance/ economic injury and that state-law claims challenging the off-panel label statement were not preempted by federal food-labeling law. The court remanded for further proceedings, leaving preemption of the use/PHO-based claims for the district court to decide in the first instance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for labeling claims | Hawkins pleaded she read and relied on the “0g Trans Fat” face-label and would not have purchased otherwise | Kroger argued complaint shows she only discovered the misrepresentation in 2015, so no reliance | Hawkins adequately alleged reliance and economic injury; statutory standing exists |
| Preemption of off-panel trans-fat statement | State-law claim challenging the face-label is valid because FDA rules that require 0 g in the Nutrition Facts Panel do not authorize equivalent off-panel claims | Kroger argued federal regulations (NLEA/FDCA and FDA rules) preempt contradictory state-law requirements | Off-panel claim is not preempted: Reid controls—required Nutrition Facts statements are distinct from nutrient-content claims off-panel, and FDA did not authorize "No/Zero/0 Trans Fat" off-panel |
| Whether ‘‘0’’ vs. ‘‘zero’’ changes analysis | Hawkins: “0g Trans Fat” is equivalent to “zero” and can be misleading | Kroger: numeric “0g” is just the mandated Nutrition Facts rounding and should be allowed off-panel | Court: no meaningful difference; both can mislead; regulation authorizations for “no/zero” differ by nutrient and trans fat is not authorized off-panel |
| Preemption of use claims (PHO inclusion) | Hawkins: inclusion of PHOs in food is unlawful under state law and actionable | Kroger: FDA’s 2015 Final Determination and subsequent Congressional action created a compliance window and preempt state claims | Court declined to decide on appeal; remanded for district court to analyze preemption of use claims in first instance (issue not fully briefed) |
Key Cases Cited
- Reid v. Johnson & Johnson, 780 F.3d 952 (9th Cir. 2015) (required Nutrition Facts statements do not authorize equivalent off-panel nutrient-content claims)
- Lilly v. ConAgra Foods, Inc., 743 F.3d 662 (9th Cir. 2014) (explains NLEA’s uniform-labeling framework and preemption standard)
- Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011) (California standing requires economic injury and causation from reliance)
- Wyeth v. Levine, 555 U.S. 555 (2009) (preemption analysis begins with congressional purpose and presumption against preemption in traditional state police powers)
- POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014) (state-law claims are not preempted where they do not conflict with, and are not different from, federal labeling requirements)